November 07, 2018

Tips from the Bench: Cross-Examination

Benjamin L. Tompkins and Andrew Alexander with Hon. J. Thomas Marten – February 26, 2018

This bar year, the Trial Evidence Committee is asking experienced trial judges to provide their insight regarding certain aspects of trial. We continue with Honorable J. Thomas Marten, Senior United States District Judge for the District of Kansas, who shared with us his thoughts on cross-examination.

Identify three strengths of an effective cross-examination.
Reconciling your cross-examination with the claims or defenses you are asserting in your case is the overarching concern for an effective cross-examination, so time spent thinking through each witness is an excellent starting point. Whether a fact witness or a witness who will offer opinion testimony, a lawyer needs to be aware of the witness’s role in the case and tailor the cross-examination appropriately.

The most effective cross-examinations are rarely hostile; they generally drive home points important to the cross-examiner’s case. When the witness’s testimony is damaging, look for opportunities to soften it. Counsel might inquire about the witness’s ability to observe (distance, obstructions to line of sight, lighting). There may be relationships with parties or other witnesses that might influence testimony. A witness may misunderstand certain facts or situations that affect her testimony. Every question a lawyer asks on cross-examination ultimately should bolster the examiner’s case, weaken the opponent’s case, or both.

One fact per question is another hallmark of an effective cross-examination. It leaves little or no wiggle room for the answer, it makes impeachment with a prior inconsistent statement easier, it eliminates room for argument over what the examiner is asking, and allows the examiner to build an argument based on simple, easy to remember facts.

Too many lawyers are not content to leave a topic with all the facts he or she needs to make an argument. The lawyer wants to make certain the trier of fact not only understands the facts, but understands what they mean, as well. That is where an otherwise effective cross-examination breaks down as the witness spends time explaining why the examiner is wrong, and the examiner keeps trying to require the witness to make the lawyer’s argument. It will not happen, and as satisfied as the examiner might be with the cross-examination as a whole, even if the witness looks foolish trying to explain, it is not as effective as getting the cold hard facts and giving them the examiner’s own interpretation at the conclusion of the case. So get the facts and move on.

Identify three weaknesses of an ineffective cross-examination.
A good start for an ineffective cross-examination is the opposite of the strengths mentioned above. Some lawyers believe they have to cross-examine on every single point made by the opponent on direct examination. This has the effect of not only making for an exhaustingly long cross-examination, but any valid points are lost among minutiae that ultimately will have no bearing on any issue.

Poor questions can kill a cross-examination. Terry MacCarthy has developed a timeless program entitled “Killer Cross-Examination” in which he spends significant time on questions, particularly one-fact-per question questions, couched in the form of statements. As an aside, back in the days when folks used to buy books of matches regularly, there was an advertisement for an art school inside the matchbook cover: “You can learn to draw at home in your spare time.” Well, the same is true for cross-examination questions. Professor Jim McElhaney used to talk about this technique, suggesting practicing it at home on friends and relatives. For example, “Been to the store?” “What did you buy?” “Milk?” “Eggs?” “Spinach?” you get the idea—one has to practice it, but it becomes second nature.

 Finally, and I mention this later in these questions, expecting a witness to make your argument is not wise. For example, assume a child custody case where the husband is claiming that he is the primary custodial parent of a 15-month old boy in the summer. On cross, opposing counsel engages in the following Q & A with the father:

          Q: Your son spends the night at his mother’s home?

          A: Yes.

          Q: She gets him up in the morning?

          A: Yes

          Q: She fixes his breakfast?

          A: Yes.

          Q: She bathes him?

          A: Yes.

          Q: She dresses him?

          A: Yes.

          Q: She has him ready for you when you pick him up at 10:00 am?

          A: Yes.

          Q: You bring him back to her home at 4:00 pm?

          A: Yes.

          Q: She feeds him dinner?

          A: Yes.

          Q: She spends the evening with him?

          A: Yes

          Q: She gets him ready for bed?

          A: Yes.

          Q: She puts him to bed?

          A: Yes.

          Q: If he wakes up in the night, she takes care of him?

          A: Yes.

          Q: If he is sick, she looks after him?

          A: Yes.

          Q: And this all starts over again the next day?

          A: Yes.      

There is a strong temptation to ask, “And you still claim you are the primary custodial parent?” But that question adds nothing to the facts, and it gives the witness an opportunity to try to explain, however implausible the explanation may be. The point is, the witness will not admit he is not the primary custodial parent. So leave it alone.

Are there examples where it is effective to ask an open-ended question rather than leading the witness?
There are many places where it is appropriate to ask open-ended questions of a witness, and just as many reasons to justify it. For example, if there is background of a witness that enhances or detracts from a witness’s credibility, open-ended questions could achieve the examiner’s desired result. In the right circumstance, if the witness lies about some matter, it will set the witness up for impeachment. There may be information about a product that a witness can more effectively answer with open-ended questions.

The most open-ended question of all, i.e., “why,” arises with some frequency on cross-examination. Should a lawyer ask it? The late great R. Eugene Pincham once told a trial advocacy student who asked a witness “why” during cross-examination, “I asked a witness ‘why’ on cross-examination twenty years ago. When I stopped by that courtroom a few days ago on my way to this program, the witness was still on the stand answering that question.”

Now, in all fairness, Gene Pincham and many great cross-examiners violated this rule with regularity, but never without careful planning and laying the groundwork ahead of time. Vince Bugliosi, the late prosecutor of numerous high-profile cases, wrote and spoke about this decision frequently. He indicated that he blocked off all possible and anticipated escape hatches. And even if the witness concocts some explanation, it is so far beyond the bounds of reason that no person would believe it.


Do you have a rule regarding how many times you will allow a witness to go beyond a yes or no answer where the question clearly asked for a yes or no answer?

 No. I try to be fair. If counsel appears to be attempting to cut off a legitimate non-argumentative answer, I will allow the witness to answer. If the witness has been difficult and appears to be trying to frustrate counsel, who is asking simple questions in good faith, I am inclined to restrict the witness. And while it is “the horse is out of the barn” situation, I occasionally instruct the jury to disregard certain testimony and strike it from the record. Fortunately, counsel and witnesses rarely reach that point.


What are effective methods for using social media in cross-examination and does it differ from the use of other types of evidence in cross-examination?
Social media is pretty much like anything else for purposes of cross-examination. It might be used in the same manner as emails, photographs, letters, transcripts, videos or any other kind of document or ESI. The principal considerations are making certain the foundation is properly laid and considering all potential hearsay issues. Tweets, instant messages, Facebook posts, etc. constitute a treasure trove of hearsay, sometimes multiple layers of it.

Using it effectively might involve placing a person somewhere other than where he claims to have been, bringing out communications with others the witness either denies or claims were different in content or time, showing associations with persons a witness may claim he or she does not know or establishing a relationship is different in kind or degree than the witness claimed. While not specifically social media content, cell phones and tablets might be used to establish the phone’s or tablet’s location at a given time on a given date.


What are effective methods for getting a witness to answer a question that he/she refuses to answer?
In my view, the best approach is to ask the same question again, word-for-word. If the witness still refuses to answer, ask it a third time, word-for-word, with a preliminary phrase, such as “Perhaps my question is not as clear as I intended.” If that does not work, and counsel feels a comfortable degree of control, she might ask, “Is there something you do not understand about this question?” Or “Is there some reason you do not want to answer this question?” You can ask the court reporter to read back the question. Go to the judge only as a last resort.

I have, at times, after lawyers have gone through this process with the witness, directed the witness to answer the question without being asked by the lawyer. At the end of the day, if the lawyer is being fair and the witness is not, the jury will understand and, if it is a point that is consequential, the jury will hold it against the witness, not the lawyer.


Do you think there is a right and a wrong way to impeach a witness on cross using prior testimony (i.e., deposition, grand jury or trial, etc.)?
There are certain steps one should take as part of impeachment with a prior inconsistent statement, whether it is prior testimony or a witness’s prior statement. The traditional approach, which I still find the most effective, is: 1) to commit the witness to his or her current statement; 2) to confront the witness with the prior statement; and 3) to complete the impeachment.

To have maximum effect, the lawyer must, first of all, have clearly inconsistent statements. For example, if the witness testified at deposition that the defendant ran a red light when he struck plaintiff’s car, and he testifies at trial that the defendant had the green light, those statements are clearly inconsistent. On the other hand, if the witness testified at deposition that when he looked up at the stoplight after the collision, the defendant had a red light, and testified at trial that he was not certain what color the light was at the time the cars collided, there is no clear unequivocal statement as to the color of the light. Yet we all have seen this, in some form or another:

Q: You said when you looked at the light right after the crash, the light was red.

A: Yes.

Q: And today you testified you do not know what color the light was.

A: Yes.

The lawyer goes through the inconsistent statement litany, which falls flat because the lawyer did not look carefully at the witness’s prior statement. The witness said the defendant’s light was red when he looked up at it right after the crash. He did not, in fact, see the light at the time of the crash, and testified consistent with his prior statement at the trial.

Inexperienced (and sometimes experienced lawyers) make the mistake of trying to impeach a witness with a prior statement that is not truly inconsistent, which is false impeachment and to be avoided at all costs. Counsel may ask the judge to advise the jury about counsel’s attempt to make statements appear to be inconsistent when they are not. If the statements are not truly inconsistent, the lawyer appears to be unfair and trying to mislead rather than to lead the jury to the truth.

If one has inconsistent statements, establish the formalities surrounding the giving of the earlier testimony. Then confront the witness with the inconsistency. And finally, leave it alone, do not ask for an explanation, and move on to the next point.

These are rare moments in most trials, and unless the lawyer has the facts, including the prior statement, at her fingertips, it can become a missed opportunity of real consequence. So statements that are not inconsistent upon close examination, failing to require the witness to commit to the current statement, failing to set out the formalities of the prior statement with the witness, failure to confront the witness with his prior statement, and then seeking an explanation are not necessarily wrong, but it will not advance your client’s case.

What are some effective strategies for impeaching an expert?
As with everything else in cross-examination (and trial practice, for that matter), cross-examining an expert requires careful planning and preparation. Among the factors to consider when looking for an approach are: the area of expertise the witness claims, his education and training in that area, employment history, criminal convictions, if any, her methodology in the case at hand and its acceptance among hers peers in the field (a major topic in a Daubert hearing), prior matters in which the witness has been engaged by a party to evaluate a claim, the division of engagements between plaintiffs and defendants (if a civil case) or prosecution and defense (if a criminal case), how much the witness charges, the total amount paid to date, what is owed, and if there is a difference between what the witness will be paid if his or her client does or does not prevail in the litigation.

 Once counsel has that information, the key decision is whether to try to discredit the witness’s conclusion(s) entirely through methodology or factual errors, which is difficult under the best of circumstances, whether to try to discredit the witness’s conclusions enough to call them all into question, whether to discredit the witness’s qualifications or character or both sufficiently that the trier of fact may discount the witness’s testimony in whole or in part, some combination of these approaches, or making an effort to have the witness agree with certain key parts of your theory. Only after counsel has decided on an approach can she begin to structure a cross-examination to accomplish the goals.

Identify one thing you would like to see an attorney do on cross-examination that you either have yet to see in your courtroom or have not seen in a long time.
One of the great trial lawyers of our time is Bobby Lee Cook from Summerville, Georgia. Bobby Lee has tried hundreds, if not thousands of cases to juries and courts, ranging from defending murder cases (nearly 200, with better than a 90 percent acquittal rate) to challenging the government’s condemnation valuation of Cumberland Island, where he obtained a huge recovery for the Rockefeller family.

 Some years ago, Bobby Lee defended a banker from Knoxville, Tennessee, in a federal criminal case involving 25 counts of mail, wire and securities fraud. During the trial, a federal witness testified that his team of accountants and auditors were all absolutely top-notch and essentially vouched for the group who did the accounting work that was the basis of the charges against defendant.

On cross-examination, Bobby Lee had the witness vouch again for the talent and integrity of his group. Then Bobby Lee asked the witness if he could name 10 persons on the team. When the witness hesitated, Bobby Lee asked if he could name five persons on the team. The witness again hesitated, and Bobby Lee asked if he could name a single person on the team. When he could not, Bobby Lee advised the witness that he was moving on, but if, at any time, the witness could think of the name of a single person on his team who worked on the case, to stop Bobby Lee mid-question and tell him. The witness did not stop Bobby Lee. This was a key witness for the prosecution. Bobby Lee’s client was acquitted on all charges.

I would love to see an examination that does so much with so few questions.

What are some common mistakes that you see attorneys make on cross-examination?
I mentioned above the most common mistake, which is expecting the witness to make counsel’s argument. One common giveaway is a question that begins with “So,” which signals a mini-summation. Keep the argument for closing. Additionally, my experience has been that jurors, as is true of most of us, enjoy making that final leap from facts to conclusion on their own.

Another common mistake is not leaving well enough alone. When a lawyer gets a perfectly fine answer on cross-examination, there is a tendency to want to make sure the jury got it, so the question comes up two or three times further during a cross-examination. And a witness frequently regrets having answered the question as he did in the first instance and is looking forward to an opportunity to soften it. Giving the witness another bite or two at the apple guarantees there will not be enough apple left to bake a pie.


What is a common mistake that you see witnesses make on cross-examination? How can an attorney help witnesses avoid making that kind of mistake?
One of the most common mistakes has nothing to do with the facts of a dispute. It is not being prepared to answer the question about whether the witness has met with opposing counsel and what was reviewed before testifying. The witness, if not prepared, can feel that there is something improper about it, and even if the witness answers truthfully, she is uncomfortable and the jury may get the sense that there is something inappropriate about the practice.

This can be avoided, and should be avoided during witness preparation by letting the witness know that it is a standard practice to meet and prepare witnesses to testify. Reviewing documents, deposition testimony, anticipated cross-examination questions, and the need to tell the truth, warts and all, should all be part of the preparation. Further, at trial, the lawyer presenting the witness should bring out the witness preparation during direct examination rather than waiting for the cross-examiner to ask about it.

What are some tips for maintaining a jury’s attention while going through exhibits on cross-examination?
I am going to assume that the document is admitted and that the courtroom is equipped with electronic evidence equipment, so the exhibit is in front of everyone.

Keeping the jury’s attention can be challenging, but it is not difficult with some forethought. The jury may need to be reminded about the significance of the document in the case. The lawyer can do this with a few short leading questions. Then the specific provision or provisions of the exhibit should be highlighted in some manner, and the witness made to agree about why these provisions are of consequence. These two elements are key – the significance of the exhibit and the significance of what the exhibit contains. If counsel can keep the jury focused on those points, the cross-examination will be interesting. If an entire series of documents explain the same thing, counsel should prepare summaries ahead of the trial and seek their admission through an in limine motion. If the court refuses to admit the summary before trial, be prepared to establish the summary’s admissibility under Rule 1006, Federal Rules of Evidence.

Beware overkill with documents.


Are there times when an attorney should consider not asking any questions on cross-examination?
The two-part test should be: 1) did the witness hurt our case on direct examination; and 2) is there anything unique the witness can provide that will materially help our case? If the answer to either question is “yes,” cross-examine. If the answer to both is “no,” the appropriate response is, “No questions, Your Honor.”

         
If an attorney is going to object during a cross-examination to help the witness or break-up the flow of a cross-examination, what strategies should the attorney consider when deciding whether to make an objection.
This is a difficult question for a couple of reasons. First, making an effort to break the flow of an examination is not part of the truth-seeking function, but I recognize that it may be part of the presentation. So while I do not necessarily approve of it, I get it. Further, I certainly understand the need to help a witness from time-to-time. My preferred method would be to ask for a brief comfort break, but an objection may be the ticket in some instances.

 As a strategic matter, I would be thinking of four or five potentially valid objections and would be waiting for an appropriate question for an objection. Some that are frequently raised are: 1) form of the question (be prepared to give a specific ground—foundation, compound, speculation, calls for legal conclusion); 2) beyond the scope of direct; 3) hearsay; 4) failure to show the witness an exhibit; and 5) assumes facts not in evidence.

The objection should be one you might not otherwise make as a matter of judgment, but which you could make. Again, I do not endorse this tactic, but if one is going to use it, it should be a legitimate objection to an otherwise improper question.

Conclusion
In answering these questions on cross-examination, I hope it is clear that I claim no special knowledge about it. This article is a brief compilation of a few things that made an impression over the years. There are numerous other aspects of cross-examination which have been the focus of other writings—controlling the witness, for example—which I have not included, but which should occur naturally as one incorporates the client’s claims or defenses into the cross, as one works to pare down the scope of cross to the important areas, and as one works to craft a tight series of one-fact questions.

 If anyone is looking for a shortcut to an effective cross-examination, you will not find it. As with anything that goes beyond adequate to excellent, it takes time, study, and thought. You will get better at it the more you do it, but there is no substitute for preparation. When Vince Bugliosi was asked if he made any mistakes during the Manson trial, he said that he did, but he made them all at home before the trial. Pull out your writing instruments of choice, and you will have taken the first essential step toward a successful cross-examination.

Benjamin L. Tompkins is counsel and Andrew Alexander is an associate at Graves Garrett LLC.


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Benjamin L. Tompkins and Andrew Alexander with Hon. J. Thomas Marten – February 26, 2018